The typical response to Word Choices II began this way. "Nice job,
but you omitted my favorite…." So by popular demand, we continue
our review of frequently confused words.

This list is heavy on verbs. Some are spelled similarly, but
most aren’t (and some don’t look alike at all). Thus, my previous,
optimistic certainty that many of our mistakes were merely overlooked typos
isn’t quite so optimistic or certain.

There are many reasons for the following mistakes. Perhaps
we’ve adopted in writing a word that sounds fine in conversation,
but isn’t fine in a formal document (e.g., lie v. lay). Or, we’ve
picked up language that’s familiar in our families, but not accepted
by writing curmudgeons (e.g., take v. bring). Sometimes, a beloved third
grade teacher used a word incorrectly, which ingrained that usage in our
little brains forever. Well, almost forever.

Verbs at CourtArgue/Contend vs. Hold/Decide
The problem with these verbs is that we forget who does what. Lawyers argue and contend because
they’re pressing their clients’ interests. Judges hold and decide because
they’re the ones with the power to determine the outcome. They don’t
have to argue or contend. Judges also get to state, imply and conclude.
Similarly, judicial opinions don’t argue or contend;
rather they hold, decide, etc.

Find vs. Hold
While judges get to both find and hold, they do so on different
points. Judges — and often juries — find the facts of
a case. Judges hold when they reach their conclusions on cases before
them.

Typically, we use these verbs in the past tense. For example, "In
a bench trial, the judge found that the defendants had possessed
the property and treated it as their own for 25 years, erecting a fence
to keep neighbors out. The court held that the defendants owned the
land through adverse possession."

Reverse vs. Overrule
I include this pair for my first-year students (loyal, if coerced readers):
an appellate court may reverse the decision of a lower court in
a case involving the same set of litigants. This decision means that the
winner below is now the loser. Years later, another court, deciding a
different case between different litigants, may overrule the earlier
decision. This means that no lawyer should follow that earlier case, but
it doesn’t change the winners and losers for the earlier litigants.

Verbs at LargeLie vs. Lay
These verbs are confusing because their forms overlap. The past tense of lie is lay.
The past participles of lie and lay are, respectively, lain (which
most of us ignore) and laid (which most of us assume works just fine
for both verbs). If you’re not already overwhelmed, remember that
the past participle follows a form of to have; it’s used to
show something that happened before the current story line. For example, "I had
returned the book to the library before I received the overdue notice."

To set the record straight, here are the present, past and
past participle forms of the two verbs, along with their definitions.

Lie, lay, lain — to assume a reclining
position

Lay, laid, laid — to put something
down

So, whenever you take a nap, you lie down. If you took
a nap yesterday, you would say that you lay down at three o’clock.
To show how long the nap lasted and why it ended, you might say you had
lain there for just 15 minutes when the phone rang.

Let’s try the other set. You lay your keys on
the counter every evening when you come home from work. You exclaim the
next morning that you are sure you laid the keys there, although
they seem to have disappeared. Despite having laid the keys on the
counter nightly, you frequently cannot find them in the morning.

Might vs. May
My research assistants pointed out that may sometimes suggests permission
(e.g., the legislature may do something) when none is intended (e.g.,
the legislature might do something). At first, I didn’t see
the problem, but now it pops up all over. So I went digging for clarity.

Most of my favorite sources say the two words are interchangeable,
although they do note unhelpfully that might is technically the past
tense of may. The Chicago Manual of Style supports the concern
of my detail-oriented research assistants, stating that may "expresses
what is possible, is factual, or could be factual," while might "suggests
something that is uncertain, hypothetical, or contrary to fact."

My advice is to consider whether your reader may (or might)
be confused. If so, rephrase the sentence to avoid ambiguity.

Bring vs. Take
Here’s a pair that can cause trouble in more than one language. (Anyone
speak Spanish? I’m forever confusing traer and llevar.)

Experts distinguish the two by noting where the action is
directed. Action directed toward the focus location uses bring; action
directed away from that location uses take. For example, my husband brings home
groceries; he takes the recycling bins to the street.

I like the following jingle, suggested by a reader: "bring is
to take as come is to go." My husband brings home
groceries because that’s where he’s coming. He takes out
the recycling bin because he has to go outside to do so. Similarly,
when I talk to you about a dinner invitation, I say I’ll bring a
bottle of wine to dinner at your house if I can take home some leftovers
of your secret recipe biscuits. Your house is the focus, so the action is
directed to or from your perspective. I come to your house bringing wine;
I go away afterward taking biscuits.

Here’s a final example: You can’t sit in your
office and say to a colleague, "I’m going to bring my
laptop home." You’re going home from the office, so you
will take your laptop with you. But when I call my husband and say, "I’m bringing my
laptop home," that’s okay because I’m coming home.
(Well, it’s not okay because it means I’m working all the time,
but the sentence is grammatically correct.)

Was vs. Were
Only a few of us know what the subjunctive mood is. And even fewer care
whether its use is safely guarded for future generations of English speakers
or goes the way of the passenger pigeon.

The simplest explanation I’ve heard is that the subjunctive
contradicts reality. Consider this sentence: "If I were in Florida,
I’d spend the weekend at the beach." The sentence suggests that
I’m freezing in Oregon, with no hope of soaking up rays on Crescent
Beach. The "were" sounds a bit funny because no one would say
of a prior trip, "I were in Florida." Instead, the simple
past tense would be "I was in Florida." But, alas, I’m
not now, and the subjunctive verb shows the reader the difference between
fact and fantasy.

The subjunctive mood doesn’t just contradict reality,
though it generally conveys a sense of uncertainty. A subjunctive verb can
express desire, state a requirement or offer a suggestion. Here are a few
examples of those uses:

His partners wish he were more conscientious in keeping
track of his billable hours.

It’s important that lawyers be aware of local
court rules.

The letter suggests that she come immediately.

The fortunate part of the subjunctive — apart from the
fact that so few people care about it — is that its form is different
from the more comfortable indicative form of most verbs only in third person
singular (i.e., he, she, you). The verb "to be" goes crazy in
subjunctive, however, as shown in the examples above and in some common
expressions: "if I were you," "far be it from
me," and "be that as it may."

Conclusion
Thanks to the readers who made suggestions for this article. Word Choices
IV is already in the works; let me know which pairs leave you puzzled.

ABOUT THE AUTHORSuzanne E. Rowe is an associate professor at the University of Oregon School of Law, where she directs the Legal Research and Writing Program. As the Luvaas Faculty Fellow for 2008-2009, she is grateful to the Luvaas Faculty Fellowship Endowment Fund for support of her articles in The Legal Writer.